The “third gender”, a demand that is gaining ground in the West

A pioneering country in Europe? Ten years ago today, Germany was the first European country to allow parents not to include the sex of their “intersex” infant on the birth certificate. This term refers to people who are born with variations in their sexual characteristics which may affect sexual organs, hormone production or even genetic makeup.

Almost five years later, in 2018, the country finally recognized a “third gender”, alongside the “feminine” and “masculine” boxes. In fact, it is now possible to check the “miscellaneous” box. In the meantime, other Western countries have made the same choice or decided to open a similar debate, often giving rise to heated legal and political disputes.

On November 1, 2013, Germany for the first time allowed parents of infants born without being clearly identified as a boy or girl to be registered in the civil registry without indicating their sex. Concretely, they no longer had the obligation to check the “feminine” or “masculine” boxes. “This is the first time that the law has recognized that there are human beings who are neither male nor female, or are both – people who do not fit into traditional legal categorizations,” explained at the time Konstanze Plett, professor of law at the University of Bremen, with our colleagues at AFP.

The federal republic had thus opened, by default, the way for the recognition of a third gender. And the country was quick to officially recognize it, in December 2018, at the urging of associations who considered that the law did not go far enough. The Federal Republic had thus added, alongside “male” and “female”, the mention “miscellaneous” in birth certificates. In principle, anyone had the possibility of changing it, once an adult, if they presented a medical certificate, reports the German media Zeit.

But what really motivated the adoption of this bill by the Bundestag? A decision taken almost a year earlier by the constitutional court in Karlsruhe concerning a person born intersex. The latter, named Vanja, had in fact taken legal action in Germany because, if she had been declared a girl at birth, she wanted to emphasize her particular situation. Suffering from a rare genetic condition, Vanja only had one X chromosome instead of the usual pair of sex chromosomes (XX for girls, XY for boys). She had thus requested the creation of a third “positive” genre, replacing the sole possibility of leaving an empty space. The constitutional judges ruled in his favor. The law therefore came into force on December 22, 2018 while certain German employers had already taken the plunge by publishing job offers for “f/m/d” (female, male, diverse), our colleagues from Zeit also reported .

For some, however, the new law did not go far enough. Indeed, part of the left and the Greens have therefore begun to demand the removal of the medical certificate requirement for intersex people who want to change the entry on their birth register. Others demanded that the law be opened to transgender people, that is to say, to those who do not have the feeling of belonging to the genders “assigned to them at birth based on external characteristics ". By criticizing the fact that the law only considers gender based on “physical characteristics”.

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Germany nonetheless remains one of the pioneering countries in Europe on these issues. Australia, for its part, had already recognized the existence of a “neutral gender” in 2014. And here too, the modification of the law was obtained following legal proceedings initiated by a person wishing to assert a new right. The latter, named Norrie and born a man, had undergone sex change surgery which was inconclusive. “The concepts of man and woman do not correspond to me, the simplest solution is to have no sexual identification,” she explained at the time.

Identifying neither as a man nor a woman, Norrie had therefore called for the creation of an additional gender on birth, death and marriage certificates, while the mention "neutral" already existed on the Australian passport since 2011. Norrie May-Welby then won his case in the Australian High Court.

More recently, across the Atlantic, the Canadian government made a similar decision. Since August 31, 2017, people who identify neither as a woman nor a man can indeed choose the designation “X”, for unspecified sex. Ditto in the United States, where in April 2022, the State Department again authorized Americans identifying as “non-binary” and “intersex” to check box X when applying for a passport.

Also read “We can change gender but not sex”: the forgotten lessons of genetics

Other countries have, for their part, taken a first step towards recognizing a third gender, by complying with the recommendations of the Council of Europe. The latter had in fact recommended in 2015 that Member States “allow intersex people not to choose a specified gender marker, male or female, on civil status”. Several countries have thus, like Germany in 2013, offered the possibility to certain applicants not to check the “man” or “woman” boxes on their birth certificate. This is for example the case of a Dutch citizen, born intersex, who obtained this possibility in 2018 by decision of the Limburg court or of the activist Alex Jürgen, who obtained the same verdict in June 2018 in Austria.

More generally, debates on “gender” are increasingly electrifying Western societies. To the point that some states have simply decided to remove the mention of gender on identity cards, such as the Netherlands and Austria, specifying that they want to fight against “too binary” mentions. In July 2022, the World Health Organization even declared in its “Gender Mainstreaming Handbook” that gender is “not limited to men and women.”

For the moment, France does not seem to be taking this path. It is still obligatory today to assign all children, within five days of birth, to the female or male sex and this deadline has been extended to two years for intersex children, since a circular of October 28, 2011.

Recent legal decisions have also shown that France does not wish to change its position. Indeed, in 2016, the Orléans Court of Appeal rejected the request of a person, born intersex, who wished to replace the mention “male sex” on their birth certificate with the mention “neutral sex” or “intersex ". She feared “recognizing, under the cover of a simple rectification of civil status, the existence of another sexual category”. On January 31, the European Court of Human Rights confirmed France in its decision, considering that this type of decision is up to each country. The ECHR even clarified that it was a “social question”.